Password disclosure and the 5th Amendment

| Comments (4) | COMSEC
Orin Kerr points to the decision in in re Boucher where a magistrate ruled that forcing someone to disclose their PGP password violates the Fifth Amendment. This question has been the topic of an unbelievable amount of amateur lawyering on cypherpunks and associated mailing lists and a lot of that gets repeated in the Volokh Conspiracy comments. The key question seems to be whether disclosing their password is a testimonial or non-testimonial act. I'm no expert on this topic, but as I recall, in past discussions, people have suggested having a password which is inherently self-incriminating (e.g., "I murdered John Doe") in an attempt to create a Fifth Amendment situation, which always seemed to me to be too clever by half.

4 Comments

I think today's decision amounts to "giving up a password forces you into a testimonial act" rather than deciding it that it is a testimonial act in and of itself. It's an interesting distinction, and I suspect the hair-splitting on the point is far from over.

As I understand it, the police aren't asking him to tell them his password. They're just asking him to type his password while their backs are turned, so they can see what the password is protecting.

I don't see how this is any different from refusing to hand over the key to a bank deposit vault or to hand over a diary or other evidence, all of which can be demanded by the prosecution.

The decision is not very significant until it works its way up the appeal chain. What is rather more significant is the fact it has taken this long for the issue to be adjudicated which tends to indicate that maybe its not quite as big a deal as people make it out to be evidence wise.

Given the refusal of the SCOTUS to come out with a plain statement of the form 'hell yes torture is criminal and why the heck you haven't impeached his sorry ass is a mystery to us' I would not expect the decision to stand. The defendant is probably being waterboarded at this very moment.

The cypherpunks list still exists? All the remailers I knew of shut down years ago. Could you tell me the name of a currently working one?

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